Al-Haq: “Recommendations by the Justice Sector Development Committee Violate Independence of the Judiciary”

Al-Haq has reviewed the Palestinian High Court judges’ position, as issued on the website of the Palestinian Judges Association on 5 September 2018, in which the High Court judges announced their resignation en masse and placed their resignation at the disposal of the Chairman of the Palestinian Judges Association. The mass resignation by the High Court judges came in protest against recommendations of the Justice Sector Development Committee (‘the Committee’), which according to the judges “violated the independence of the judiciary and the principle of separation of powers, providing an easy way for the executive authority to tighten its control over the judiciary.”

One full year after its establishment by a Presidential Decision on 6 September 2017, the Committee is yet to publish a written document outlining the Committee’s official vision for the development of the justice sector. Yet, with the exception of a few media statements regarding the recommendations, no document has been presented for public consultation and community discussion.

Despite the fact that the Presidential Decision has tasked the Committee with developing an inclusive vision for the development of the justice sector, the Committee’s media statements have only revealed limited recommendations. The recommendations have been presented in an ambiguous manner, inaccurately reflecting the position of civil society in relation to ensuring the reform of the justice sector. Instead, the Committee’s recommendations have caused confusion as they do not make clear nor help understand civil society’s position, including in relation to the evaluation of judges and other relevant matters.

In light of released media statements on the justice sector development, Al-Haq highlights the following:

The Committee recommended the establishment by a Presidential Decision of a committee for the evaluation of judges. After years of failure in achieving tangible progress towards judicial reform, this recommendation does not take into account that ongoing challenges to the judiciary are attributed to the primacy of the executive authority over the judicial power. Under the pretext of evaluating judges, this proposal gives the executive more control over the judiciary. The executive will be in control of the composition of the judges’ evaluation committee. At the same time, no information is available on the principles and criteria for membership in the committee. There is also no guarantee that the committee formed by the executive will not pose an imminent threat to the judges, jeopardising their own independence and the independence of judiciary. This would breach the rule of law and the principle of separation of powers. The Committee’s recommendation claims that civil society organisations have called for the establishment by the executive authority of a committee for the evaluation of judges. This statement is not accurate, however, as from a civil society perspective, an “independent” national committee for reform of the justice sector must be established by an elected Palestinian Legislative Council, within the context of a reformed constitutional system, or based on national consensus, and in line with objective and transparent principles and criteria. In all circumstances, the decision taken by the executive must be extrinsic, not constitutive.

The Committee recommended that, based on a recommendation of the High Judicial Council, the Director of the Judicial Inspection Department be appointed for a period of four years by a Presidential Decision. The recommendation contradicts the Law on the Judicial Authority, which does not vest the executive with any power to make such an appointment in this regard. Already last year, this recommendation had been proposed by the executive as part of the amendments to the Judicial Authority Law. At the time, these amendments were widely opposed by civil society, the Palestinian Judges Association, Prosecution Members’ Association, and the Palestinian Bar Association. As a result of this recommendation by the Committee, the executive would control the evaluation of judges and the Judicial Inspection Department, allowing for further interference with the judicial power and the administration of justice.

The Committee recommended that the evaluation process cover all judges, including the High Court judges, but with the exception of the President of the High Court and the Attorney General. The Committee also recommended that the retirement age for judges be reduced from 70 to 65 years, again with the exception of the President of the High Court. This recommendation gives rise to a conflict of interests because the exception applies to members of the Justice Sector Development Committee. The recommendations were, still, approved by the rest of the Committee members. This highlights civil society’s position that the Committee should be independent. Formal justice sector institutions – the targets of the reform process – may not be part of a committee that is assigned to reform the justice sector. Recommending that the “current” High Judicial Council Chairman be saved from retirement at the age of 65, the Committee has ignored that a key component of a legal rule is that it should be both “general and abstract”. A legal rule is not designed for a particular person so as to allow a deviation from statutory requirements. Also, reducing the retirement age to 65 years does not seem to help address the shortcomings of the High Court. On the contrary, it complicates matters further and may be construed as though it pensions off certain judges, while keeping others in office.

Despite the great controversy raised by the decision to form the Supreme Constitutional Court and the rulings and declaratory judgements this Court has entered, the Committee’s recommendations have entirely ignored the establishment and workings of the Supreme Constitutional Court while it has received widespread opposition by civil society for imposing its guardianship on the judicial power, the political system, and the Basic Law. As such, questions must be raised as to the intention behind such an omission considering that serious justice sector reform would be untenable if the status of the Supreme Constitutional Court remains unchanged.

The Committee’s recommendations on the working relationship between the Public Prosecution and judicial power contradict relevant international standards. Article 10 of the 1990 Guidelines on the Role of Prosecutors provides that “[t]he office of prosecutors shall be strictly separated from judicial functions.” In its reviews of State reports, the United Nations (UN) Human Rights Committee has repeatedly emphasised the independence of prosecutors. The Human Rights Committee’s General Comment 35 on Article 9 of the International Covenant on Civil and Political Rights (ICCPR) asserts that “[i]t is inherent to the proper exercise of judicial power that it be exercised by an authority which is independent, objective and impartial in relation to the issues dealt with. Accordingly, a public prosecutor cannot be considered as an officer exercising judicial power”.

It does not appear that the Committee’s recommendations on expanding the membership of the High Judicial Council (‘the Council’) pay sufficient attention to civil society’s demands regarding the institutional development and performance of the Council or in relation to relevant repercussions on the judicial reform process. Contrary to the Committee’s views, this important issue cannot be addressed by merely adding two new members to the current High Judicial Council, namely a presiding judge of a court of first instance and a non-judicial figure. Instead, a series of effective steps must be taken, including by: separating the (judicial) office of the president of the High Court should from the (administrative) position of the High Judicial Council Chairman; selecting the High Judicial Council judges of various levels “from amongst their counterparts” in a similar way to the selection of the High Court judges by the High Court panel. Using the same mechanism, judges of all levels should be members of the Council, including judges of Conciliation Courts. Civil society should be effectively represented in the Council’s membership to ensure transparency and external oversight of the Council’s performance. In addition, members should be selected from within civil society, not through the High Judicial Council, as they are not judges, while ensuring that the processes and decisions of the High Judicial Council are publicly accessible, in order to promote transparency and oversight of its performance.

The Committee has not issued any recommendations in relation to safeguarding the right of judges and prosecutors to freedom of expression in line with international human rights treaties and standards. In this context, the instructions issued by the President of the High Judicial Council, based on which High Court judges have been referred for interrogation, violate the Basic Law and relevant international standards. The Committee’s recommendations do not address the impact on judicial reform of annual judicial formations, which violate the Judicial Authority Law. They do not look into the distribution of cases to judges and court panels according to objective criteria. Also, there are no recommendations on clear controls and criteria for the establishment of committees, selection of trainers, judges’ participation in conferences, thereby affecting judicial independence.

Accordingly, Al-Haq:

Calls on the Justice Sector Development Committee, which is composed of the Chairman of the High Judicial Council, the Legal Advisor to the President, the Minister of Justice, the Attorney General, the Chairman of the Palestinian Bar Association, the Director-General of the Independent Commission for Human Rights (ICHR), the Dean of the Faculty of Law at An-Najah University, and the Dean of the Faculty of Law and Public Administration at Birzeit University, to submit a written document, outlining the Committee’s comprehensive vision for developing the justice sector. This will be in line with the provisions of Article 1 of the Presidential Decision on the establishment of the Committee in order to allow civil society to review, discuss, and follow up on its vision, especially since the Committee’s second and current term has expired as of 6 September 2018.

Emphasises that successful justice sector reform requires a serious political will. Accordingly, Al-Haq calls on President Mahmoud Abbas to issue a clear and decisive announcement, putting an end to any interference with the judicial power and justice administration and ensuring accountability for interference with the judiciary and the administration of justice. In addition to overcoming ongoing challenges, this effort should aim at initiating an effective justice sector reform process.

Considers that justice sector reform necessarily requires an enabling environment, which ensures respect for, and universal application of, the rule of law as the basis of good governance as well as compliance with the principle of separation of powers. This enabling environment will maintain the society’s right to choose their representatives in free and fair general elections in a democratic system. Such an environment would ensure independent and effective community participation in the reform process, while an elected parliament, reflecting public will, would supervise and ensure an inclusive justice sector reform process.

Reiterates that justice reform is an indivisible right of the society as a whole. This requires serious action to reunite and reform the judicial power in the West Bank and Gaza Strip. The catastrophic situation of the justice system in Gaza must be addressed. Judgements and decisions made during the internal Palestinian political divide need to be revisited. The reform process will involve the Supreme Constitutional Court insomuch as it is the strong arm that preserves the primacy of the Basic Law and protects public rights and freedoms. Palestinian women must play an effective role in the justice sector reform process and be included in the membership of the Supreme Constitutional Court.